Going abroad by a parent who is obliged to pay child support and who evades his or her obligation does not prevent the enforcement of child support. However, this may cause serious difficulties with respect to the effectiveness of enforcement. European and other international laws and regulations to which Poland is a party provide for the effective collection of child support payments.
How to enforce child support from a parent who lives abroad?
It is crucial that the creditor knows in which country the debtor is currently staying (a parent who evades child support payments). Procedures for enforcing child support abroad are regulated, depending on whether we intend to obtain child support amounts from the person staying in European Union member states or in non-European Union member states.
A child support obligation must be based on a final and absolute judgment made by a Polish court or on a court settlement. In order to initiate the enforcement, the person obliged to make child support payments should evade such payments for minimum 2 or 3 months.
If the debtor stays in a European Union member state (except for Denmark), the provisions of Council Regulation (EC) No. 4/2009 of December 18, 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ UE L of January 10, 2009, No. 7, pp. 1-79) apply.
The enforcement is carried out upon the request of the creditor in the state where the child support debtor stays. To initiate enforcement proceedings, the creditor should file an appropriate and correctly completed form in the Polish version and in an official language of the state where the debtor resides.
The proceedings for enforcing child support are conducted by the Circuit Court [Sąd Okręgowy] with jurisdiction over the place of residence of the person entitled to child support payments. The Polish court refers the case to a competent authority in another European Union member state to initiate and pursue the enforcement, but it is carried out under the law applicable in the state to which the petition was referred.
It should be emphasized that it is necessary to attach relevant documents to the petition (including a sworn translation / completed in two language versions).
Importantly, the lack of the debtor’s address does not prevent the initiation of enforcement proceedings. The Regulation also regulates the obligation to seek out a parent evading the payment of child support. To that end, an appropriate application/petition for special actions should be lodged with the head of the Circuit Court.
What should be done, if a person obliged to pay child support evades payments and has emigrated outside Europe, e.g. to the USA?
In this case, the adjudged child support may also be enforced but the legal basis will be different.
Until now, child support claims have been enforced on the basis of the effective reciprocity rule with respect to the recognition of child support rulings. Proceedings were initiated by filing a unified petition for child support and appendices thereto.
From January 1, 2017 the procedure for claiming child support from debtors residing in the United States is laid down in the Hague Convention of November 23, 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance. The Convention applies, inter alia, to child support obligations towards persons under 21 years of age arising from parent-child relationships.
Unless the way to initiate enforcement is changed – also through the Circuit Court with jurisdiction over the creditor’s place of residence – it is however required to submit different documents of a slightly broader scope.
The Council Regulation (EC) No. 4/2009 of December 18, 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ UE L of January 10, 2009, No. 7, pp. 1-79).
The Convention of November 23, 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (OJ UE L of July 2, 2011, No. 192, pp. 39-70).
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